[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[F. Permissible Limitations on Use of Funds]
[Â§ 66. Exceptions From Limitations]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6315-6328]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
               F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
 
Sec. 66. Exceptions From Limitations

Proviso Construing Terms as ``Exception''

Sec. 66.1 Where a limitation in an amendment to an appropriation bill 
    prohibited certain payments to persons in ``excess of . . . $500,'' 
    a further provision stating that such limitation would not be 
    ``construed to deprive any share renter of payments'' to which he 
    might be otherwise entitled was held to be in order as an exception 
    to a limitation.

    On Mar. 24, 1944,(16) during consideration of the 
Department of Agriculture appropriation bill for 1945 (H.R. 4443), the 
following proceedings occurred:
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16. 90 Cong. Rec. 3095, 78th Cong. 2d Sess.
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        Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Rees of Kansas: On page 62, line 
        5, after the colon following the word ``inclusive'', insert the 
        following: ``Provided further, That no payment or payments 
        hereunder to any one person or corporation shall be in excess 
        of the total sum of $500: And provided further, That this 
        limitation shall not be construed to deprive any share renter 
        of payments not exceeding the amount to which he would 
        otherwise be entitled.''

[[Page 6316]]

        Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make a 
    point of order against the amendment because of the inclusion of 
    the second proviso therein, which, in my judgment, constitutes 
    legislation upon an appropriation bill. It is in effect a 
    construction of the preceding proviso, and which legislatively 
    provides that the preceding proviso in the case of tenants shall 
    not be taken at its face value but that a different rule shall be 
    applicable to them. Because that provision is included, I think the 
    entire amendment is subject to a point of order because of its 
    being legislative in character. . . .
        . . . [I]t is my opinion, having heard the amendment read, 
    although I have not had the opportunity to examine it carefully, 
    that the second proviso does not constitute merely an exception to 
    the limitation made in the first proviso, but it is legislative in 
    character and constitutes a legislative construction of the 
    language contained in the first proviso and is, therefore, clearly 
    in itself legislation. I know no reason why the gentleman from 
    Kansas should not offer or be permitted to offer the first proviso. 
    But I think the second proviso which reads, ``And provided further, 
    That this limitation shall not be construed to deprive any share 
    renter of payments not exceeding the amount to which he would 
    otherwise be entitled,'' is clearly a legislative construction of 
    the preceding proviso and, therefore, in itself constitutes 
    legislation.
        The Chairman: (17) Does the gentleman from Kansas 
    desire to be heard further?
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17. William M. Whittington (Miss.).
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        Mr. Rees of Kansas: Just one point. Let me observe that the so-
    called limitation is a limitation only on the first proviso of the 
    amendment and does not constitute legislation on the bill.
        The Chairman: The Chair is ready to rule. The Chair is of the 
    opinion that the second proviso constitutes an exception to the 
    provisions of the amendment as contained in the first proviso. The 
    Chair overrules the point of order.

Excepting Project From Dollar Limit Otherwise Applicable

Sec. 66.2 A provision in the general appropriation bill, 1951, 
    providing that no part of the appropriation shall be used for 
    beginning construction of any building costing in excess of 
    $15,000, except that a poultry breeding house may be constructed at 
    Purdue University at a cost of not to exceed $29,000, was held to 
    be a valid exception from a proper limitation and in order inasmuch 
    as the authorization for such projects contained no ceiling on such 
    expenditures and the exception was not construed as separate 
    construction authority.

    On Apr. 27, 1950,(18) the Committee of the Whole was 
considering H.R. 7786. A point of order

[[Page 6317]]

against a provision in the bill was overruled as follows:
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18. 96 Cong. Rec. 5910, 5911, 81st Cong. 2d Sess.
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        Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a 
    point of order against the language appearing in lines 15 to 17 on 
    page 157, reading ``Except that a poultry breeding house may be 
    constructed at Purdue University,'' on the ground that it is 
    legislation in an appropriation bill.
        The Chairman: (19) Does the gentleman from 
    Mississippi desire to be heard on the point of order?
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19. Jere Cooper (Tenn.).
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        Mr. [Jamie L.] Whitten [of Mississippi]: Yes, Mr. Chairman. Mr. 
    Chairman, I wish to call attention to the fact that under the 
    Research and Marketing Act, section 7-A, 7 United States Code 
    427(h), the Department of Agriculture is authorized to construct 
    agricultural buildings without limitation on the amounts. This 
    committee has put restrictions heretofore on these amounts, fixing 
    the individual amount at $15,000 per unit. We carry that provision 
    with the exception that in this instance we let them go above it.
        It traces back to the legislative authorization in the Research 
    and Marketing Act under which they have authority to build such 
    houses without any limitation.
        In effect this is a limitation.
        The authorization reads as follows:

            The money appropriated in pursuance of this title shall 
        also be available for the purchase or rental of land and the 
        construction and acquisition of buildings necessary for 
        conducting research provided for in this title.

        In effect this is a limitation fixing the amount they may spend 
    for this purpose.
        The Chairman: . . . The Chair has examined the provisions of 
    existing law cited by the gentleman from Mississippi and invites 
    attention to the fact that the first part of this paragraph appears 
    clearly to be a limitation and the latter part of the paragraph 
    appears to be an exception to the limitation for a purpose 
    authorized by law.
        The Chair, therefore, overrules the point of order.

Duties Involved in Applying Limitation Already Required by Law

Sec. 66.3 It is in order as an exception from a limitation in a general 
    appropriation bill to include language precisely descriptive of 
    authority provided in law so long as the exception only requires 
    determinations already required by law and does not impose new 
    duties on federal officials.

    On Aug. 3, 1978,(20) during consideration in the 
Committee of the Whole of the foreign assistance appropriation bill 
(H.R. 12931), a point of order was raised against the following 
amendment:
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20. 124 Cong. Rec. 24249, 24250, 95th Cong. 2d Sess.
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        The Clerk read as follows:

            Amendment offered by Mr. [Tom] Harkin [of Iowa]: Page 11, 
        strike out the period on line 17 and insert in

[[Page 6318]]

        lieu thereof ``, except that funds appropriated or made 
        available pursuant to this Act for assistance under part I of 
        the Foreign Assistance Act of 1961 (other than funds for the 
        Economic Support Fund or peacekeeping operations) may be 
        provided to any country named in this section (except the 
        Socialist Republic of Vietnam) in accordance with the 
        requirements of section 116 of the Foreign Assistance Act of 
        1961.''. . .

        Mr. [Clarence D.] Long of Maryland: Mr. Chairman, I do make a 
    point of order against the Harkin amendment. . . .
        The gentleman's amendment clearly would place substantial 
    additional new duties on officers of the Government. Mr. Chairman, 
    in chapter 26, section 11.1, of ``Deschler's Procedures,'' the 
    following is stated:

            But when an amendment, while curtailing certain uses of 
        funds carried in the bill, explicitly places new duties on 
        officers of the government or implicitly requires them to make 
        investigations, compile evidence, or make judgments and 
        determinations not otherwise required of them by law, then it 
        assumes the character of legislation and is subject to a point 
        of order.

        Mr. Chairman, the gentleman's amendment intends that aid should 
    be provided to certain countries if such assistance will directly 
    benefit the needy people in such countries. Several legislative 
    provisions currently exist that presently provide for such 
    determinations, but these provisions do not apply to all the funds 
    appropriated in this bill.
        In addition, the gentleman's amendment would require officials 
    to make judgments and determinations that they are not required to 
    make at the present time. We presently have no AID programs or AID 
    missions in any of these countries. In two of the countries we do 
    not have diplomatic relations, Vietnam and Cambodia. In one country 
    we have no U.S. Government representative, and that country is 
    Uganda. The gentleman's amendment would not only allow direct 
    assistance to flow to these countries, which is not now possible, 
    but also would require some U.S. Government official to determine 
    if the assistance is reaching the needy. This would require a U.S. 
    Government official to travel to these countries to make an onsite 
    inspection since there are no AID missions in any of these 
    countries and no U.S. Government representation present in three of 
    the countries. The gentleman's amendment definitely places 
    substantial additional duties on U.S. Government officials.
        Also current law prohibits any direct assistance to Vietnam, 
    Laos, Cambodia, Uganda, Mozambique, or Angola. The gentleman's 
    amendment would allow direct assistance to flow to these countries 
    if the assistance would benefit the needy people. This in effect 
    changes the existing law. The amendment is legislative in nature 
    and in violation of clause 2, rule XXI. . . .
        Mr. Harkin: Mr. Chairman, by the fact that I have included 
    section 116 of the Foreign Assistance Act of 1961, by that very 
    inclusion those four countries so named and listed are then put in 
    the category of being gross violators of human rights, and because 
    of the inclusion, then, of section 116, which I have laid out in my 
    amendment, there are no new duties imposed in my amendment--only 
    the requirements of existing law. . . .

[[Page 6319]]

        Mr. Long of Maryland: I would simply say that we do not have 
    missions in these countries, and the duties that would be required, 
    to find out whether needy people would get the money, would require 
    us to send people there. That clearly imposes duties on the 
    Government which are not implied in the current legislation.
        The Chairman:(1) The Chair is ready to rule.
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 1. Abraham Kazen, Jr. (Tex.).
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        According to the amendment, the only funds that the amendment 
    refers to are funds provided for in the bill, and the only 
    exception would be to the Socialist Republic of Vietnam; but funds 
    are to be provided in accordance with the requirements of law and 
    the law cited is, on its face, applicable to the countries covered 
    by the amendment; so the Chair does not see that there are any new 
    duties imposed on anyone by the amendment. Therefore, the Chair 
    respectfully overrules the point of order.

Statement of Purpose Should Not Accompany

Sec. Sec. 66.4 A limitation on the use of funds in a general 
    appropriation bill, or an exception therefrom, may not be 
    accompanied by language stating a motive or purpose in carrying out 
    the limition or exception.

    On Aug. 8, 1978,(2) the Committee of the Whole had under 
consideration the Defense Department appropriation bill (H.R. 13635), 
when a point of order was sustained against a provision in the bill as 
indicated below:
---------------------------------------------------------------------------
 2. 124 Cong. Rec. 24969, 24970, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 860. None of the funds appropriated by this Act shall 
        be available for the pay of a prevailing rate employee, as 
        defined in paragraph (A) of section 5342(a)(2) of title 5, 
        United States Code, at a rate that is greater than 104 percent 
        of the rate of pay payable to an employee in the second step of 
        the grade of the regular, supervisory, or special wage 
        schedule, in which the prevailing rate employee is serving: 
        Provided, That to assure that this limitation does not (1) 
        reduce the rate of pay of a prevailing rate employee, 
        continuously employed after September 30, 1978, as set forth 
        hereafter, below the rate of pay for that employee in effect on 
        September 30, 1978, or (2) prevent such employee from receiving 
        the first 5.5 percent increase in rate of pay as the result of 
        any adjustments in pay pursuant to section 5343 of title 5, 
        United States Code, that become effective on or after October 
        1, 1978, the pay of a prevailing rate employee who was employed 
        before October 1, 1978, shall not be reduced by this limitation 
        (1) below that to which the employee was entitled based on his 
        or her rate of pay on September 30, 1978, or (2) after a pay 
        adjustment pursuant to section 5343 effective during fiscal 
        year 1979, below 105.5 percent of that to which the employee 
        would be entitled based on his or her rate of pay on September 
        30, 1978, if the employee--
            (A) continues to be employed after October 1, 1978, without 
        a break in service of one work day or more; and
            (B) is not demoted or reassigned for personal cause, or at 
        his or her request.

[[Page 6320]]

        Mr. [Richard C.] White [of Texas]: Mr. Chairman, I raise a 
    point of order to section 860, that the provisions of this section 
    constitute legislation in an appropriation bill in violation of 
    rule XXI, clause 2 of the rules and regulations of the House of 
    Representatives.
        In support, I cite Deschler's Procedures, page 367, section 
    1.2, in which it states:

            Language in an appropriation bill changing existing law is 
        legislation and not in order.

        And Cannon's Precedents, section 704, which states that the 
    language controlling executive discretion is legislation and is not 
    in order on an appropriation bill.
        I believe that section 860 enacted into law can be construed as 
    requiring lower payment of salaries than may be required by law, 
    specifically Public Law 93-952, and thus it changes existing law. . 
    . .
        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the object of 
    the provision is to limit expenditures and retrench programs and 
    expenditures, it is a limitation on an appropriation bill, which is 
    designed to save tremendous sums of money over the long run.

        The Chairman: (3) The Chair is ready to rule.
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 3. Daniel D. Rostenkowski (Ill.).
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        The first part of the section seems to be a proper limitation, 
    however the proviso placed on line 3, page 57, certainly is a 
    legislative statement of purpose and not merely an exception from 
    the limitation.
        The Chair sustains the point of order against the entire 
    section.

Additional Duties and Determinations Not Required by Existing Law

Sec. 66.5 To a proviso in a general appropriation bill denying the use 
    of funds to pay price differentials on contracts made for the 
    purpose of relieving economic dislocations, an amendment exempting 
    from that prohibition contracts determined by the Secretary of the 
    Army pursuant to existing laws and regulations as not to be 
    inappropriate therefor by reason of national security 
    considerations was ruled out as legislation imposing new duties on 
    the Secretary, absent any showing of existing provisions of law 
    requiring such a determination to be made.

    On Sept. 16, 1980,(4) during consideration in the 
Committee of the Whole of the Department of Defense appropriation bill 
(H.R. 8105), a point of order against an amendment was sustained as 
follows:
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 4. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        . . . No funds herein appropriated shall be used for the 
    payment of a price differential on contracts hereafter made for the 
    purpose of relieving economic dislocations: Provided further,

[[Page 6321]]

    That none of the funds appropriated in this Act shall be used 
    except that, so far as practicable, all contracts shall be awarded 
    on a formally advertised competitive bid basis to the lowest 
    responsible bidder.
        The Clerk read as follows:

            Amendment offered by Mr. [Joseph P.] Addabbo [of New York]: 
        Page 41, line 23, strike out ``Provided further,'' and all that 
        follows through ``economic dislocations:'' on page 42, line 1, 
        and insert in lieu thereof ``Provided further, That no funds 
        herein appropriated shall be used for the payment of a price 
        differential on contracts hereafter made for the purpose of 
        relieving economic dislocations other than contracts made by 
        the Defense Logistics Agency and such other contracts of the 
        Department of Defense as may be determined by the Secretary of 
        Defense pursuant to existing law and regulations as not to be 
        inappropriate therefor by reason of national security 
        considerations:''. . . .

        Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of 
    order against the amendment as legislation in a general 
    appropriation bill, and therefore in violation of clause 2 of rule
    XXI.

        I respectfully direct the attention of the Chair to Deschler's 
    Procedure, chapter 25, section 11.2 which states:

            It is not in order to make the availability of funds in a 
        general appropriation bill contingent upon a substantive 
        determination by an executive official which he is not 
        otherwise required by law to make.

        I also respectfully direct the attention of the Chair to 
    section 843 of the House Manual, which states in part:

            The fact that a limitation on the use of funds may . . . 
        impose certain incidental burdens on executive officials does 
        not destroy the character of the limitation as long as it does 
        not directly amend existing law and is descriptive of functions 
        and findings already required to be undertaken under existing 
        law. . . .

        Mr. Chairman, the amendment prohibits the payment of price 
    differentials on contracts except--and I quote:

            As may be determined by the Secretary of Defense pursuant 
        to existing laws and regulations as not to be inappropriate 
        therefor by reason of national security considerations.

        The exception makes the availability of funds for payment of 
    price differentials contingent on a substantive determination by 
    the Secretary of Defense which is not now required under the 
    current law. Although the determination is limited ``pursuant to 
    existing laws and regulations,'' there is no existing law at the 
    present time, and if this amendment is enacted, it will constitute 
    the existing law and require this new determination. . . .
        The Chairman: (5) The Chair is ready to rule.
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 5. Daniel D. Rostenkowski (Ill.).
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        The amendment would appear to call for a determination by the 
    Secretary of Defense as to appropriateness by reason of national 
    security considerations. Unless the gentleman from New York (Mr. 
    Addabbo) can cite to the Chair those provisions of existing law 
    requiring such determinations with respect to defense contracts, 
    the Chair must conclude that the amendment would impose new duties 
    upon the Secretary and would constitute legislation.

[[Page 6322]]

Responsibilities Already Required in Broad Terms

Sec. 66.6 An exception from a limitation on the use of funds in a 
    general appropriation bill, stating that the limitation does not 
    prohibit use of funds for designated federal activities which were 
    already required by law in more general terms, was held in order as 
    not containing new legislation.

    In proceedings on June 27, 1979,(6) an amendment denying 
the use of funds for state plan monitoring visits by the Occupational 
Safety and Health Administration where the workplace has been inspected 
by a state agency within six months, but also providing that the 
limitation would not preclude the federal official from conducting a 
monitoring visit at the time of the state inspection, to investigate 
complaints about state procedures, or as part of a special study 
program, or to investigate a catastrophe, was held not to require new 
determinations by federal officials, where existing law directed state 
agencies to inform federal officials of all their activities under 
state plans.
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 6. 125 Cong. Rec. 17033-35, 96th Cong. 1st Sess.
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        Mrs. [Beverly B.] Byron [of Maryland]: Mr. Chairman, I offer an 
    amendment.
        (The portion of the bill to which the amendment relates is as 
    follows:)

               Occupational Safety and Health Administration

                             salaries and expenses

            For necessary expenses for the Occupational Safety and 
        Health Administration, $181,520,000: Provided, That none of the 
        funds appropriated under this paragraph shall be obligated or 
        expended for the assessment of civil penalties issued for first 
        instance violations of any standard, rule, or regulation 
        promulgated under the Occupational Safety and Health Act of 
        1970 (other than serious, willful, or repeated violations under 
        section 17 of the Act) resulting from the inspection of any 
        establishment or workplace subject to the Act, unless such 
        establishment or workplace is cited, on the basis of such 
        inspection, for 10 or more violations: . . . Provided further, 
        That none of the funds appropriated under this paragraph shall 
        be obligated or expended for the proposal or assessment of any 
        civil penalties for the violation or alleged violation by an 
        employer of 10 or fewer employees of any standard, rule, 
        regulation, or order promulgated under the Occupational Safety 
        and Health Act of 1970 (other than serious, willful or repeated 
        violations and violations which pose imminent danger under 
        section 13 of the Act) if, prior to the inspection which gives 
        rise to the alleged violation, the employer cited has (1) 
        voluntarily requested consultation under a program operated 
        pursuant to section 7(c)(1) or section 18 of the Occupational 
        Safety and Health Act of 1970 or from a private consultative 
        source approved by the Administration and (2) had the 
        consultant examine the condition cited and (3) made or is in 
        the process of making a reasonable good faith effort to 
        eliminate the hazard created

[[Page 6323]]

        by the condition cited as such, which was identified by the 
        aforementioned consultant, unless changing circumstances or 
        workplace conditions render inapplicable the advice obtained 
        from such consultants.

        The Clerk read as follows:

            Amendment offered by Mrs. Byron: Page 10, line 20, after 
        the period, insert the following: ``None of the funds 
        appropriated under this paragraph may be obligated or expended 
        for any state plan monitoring visit by the Secretary of Labor 
        under section 18 of the Occupational Safety and Health Act of 
        1970, of any factory, plant, establishment, construction site, 
        or other area, workplace or environment where such a workplace 
        or environment has been inspected by an employee of a State 
        acting pursuant to section 18 of such Act within the 6 months 
        preceding such inspection, provided that this limitation does 
        not prohibit the Secretary of Labor from conducting such 
        monitoring visit at the time and place of an inspection by an 
        employer of a State acting pursuant to section 18 of such Act, 
        or in order to investigate a complaint about state program 
        administration, a discrimination complaint under section 11(c) 
        of such Act, or as part of a special study monitoring program, 
        or to investigate a fatality or catastrophe.''. . .

        Mr. [William D.] Ford of Michigan: . . . I make the point of 
    order that this amendment constitutes legislation in an 
    appropriations bill in violation of rule XXI, clause 2, in that it 
    imposes additional duties upon the executive to the extent that 
    OSHA would be required to determine whether or not an employer had 
    been inspected by a third inspector within the previous 6 months. 
    The law does not now require OSHA to do this. This would clearly 
    pose additional duties and goes beyond the simple limitation.
        As a matter of fact, Mr. Chairman, if you look at the language 
    of the authorization funded under this section of the 
    appropriations bill the chairman will determine the extent to which 
    the States participate as enforcers of the Federal OSHA 
    regulations. This now would have a Federal official presumably 
    trying to monitor the activities of State inspectors who are not, 
    in fact, OSHA inspectors. This is a very unusual result because we 
    do not now impose that duty in any way upon the OSHA inspectors. . 
    . .
        Mrs. Byron: . . . It is my understanding that the State has the 
    opportunity when they are investigating, they are then monitored by 
    the Federal. This would then notify the Federal of where a State 
    inspection was taken care of; therefore, the Federal would be 
    following along after the State inspection. It would, therefore, 
    not be new legislation in an appropriations bill. . . .

        The Chairman: (7) The Chair has read the statute 
    entitled 29 and would like to propound an inquiry to the gentleman 
    from Michigan, on part of his point of order.
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 7. Don Fuqua (Fla.).
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        The statute in subparagraph (f) states that the Secretary, 
    meaning the Secretary of Labor--
        shall, on the basis of reports submitted by the State agency 
        and its own inspections, make a continuing evaluation of the 
        matter in which each State having a plan approved under this 
        section is carrying out such plan.

        Does that pertain to how frequently the plan must be reviewed?
        Mr. Ford of Michigan: Mr. Chairman, the amendment attempts to 
    uti

[[Page 6324]]

    lize that language by talking about an attempt not to interfere 
    with the power of the Secretary to conduct monitoring visits, but 
    the fact is that the Secretary is required to determine, in order 
    to determine whether or not they have jurisdiction to conduct a 
    safety inspection, whether a State inspection had been conducted 
    within the previous 6 months. The amendment does not even define 
    what State inspection might be. It is not clear from reading the 
    amendment without further explanation, whether that means an 
    inspection is confined to OSHA or some overlapping State 
    regulation. . . .
        The Chairman: The Chair is prepared to rule.
        It appears that the interpretation that is being given by the 
    gentleman from Michigan in his point of order is a personal 
    interpretation and does not appear to be in the statutes.
        The amendment of the gentlewoman states ``no funds appropriated 
    under this paragraph,'' and it appears to be a limitation on the 
    expenditures of funds under certain conditions suggesting 
    evaluations already imposed in broad terms upon Federal officials 
    by existing law, and, therefore, does not provide any additional 
    responsibilities that are not presently contained in existing 
    statutes.
        The Chair therefore rules against the point of order.

Exception to Limitation Not Adding Legislation

Sec. 66.7 An exception from a limitation or from a legislative 
    amendment retrenching expenditures which does not add legislation 
    to a general appropriation bill is in order.

    On July 30, 1980,(8) during consideration in the 
Committee of the Whole of the Department of Agriculture appropriation 
bill (H.R. 7591), a point of order against an amendment was not 
sustained, as indicated below:
---------------------------------------------------------------------------
 8. 126 Cong. Rec. 20503, 96th Cong. 2d Sess.
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        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I offer 
    an amendment to the amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Whitten to the amendment offered 
        by Mr. [Herbert E.] Harris [of Virginia]: Strike [out the] 
        period and add: ``, except that this limitation shall not apply 
        to emergency or disaster programs of the Farmers Home 
        Administration and the Agricultural Stabilization and 
        Conservation Service and programs for the control of infectious 
        or contagious diseases of humans and animals carried out by the 
        Food and Drug Administration and the Animal and Plant Health 
        Inspection Service.''.

        Mr. Harris: Mr. Chairman, I would like to make a point of order 
    on that amendment. . . .
        I feel the amendment is clearly legislation on an appropriation 
    bill and does in fact do violence to my amendment. . . .
        Mr. Whitten: . . . Deschler's Procedure, chapter 25, section 
    9.7 [states]:

            An exception to a valid limitation in a general 
        appropriation bill is in order, providing the exception does 
        not add language legislative in effect.

[[Page 6325]]

        I do not consider that this adds legislative language to the 
    amendment. It is an exception to the limiting provision as offered. 
    I respectfully submit that it is in order and should be considered.
        The Chairman: (9) The Chair is ready to rule.
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 9. James C. Corman (Calif.).
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        An exception to a limitation or a retrenchment which does not 
    add legislation is clearly in order under the precedents, and the 
    point of order is not sustained.

Sec. 66.8 An exception to a limitation on the use of funds in a general 
    appropriation bill is in order if it does not impose new duties or 
    determinations on the executive branch.

    On July 13, 1979,(10) it was held that, to an amendment 
retrenching expenditures in a general appropriation bill by reducing 
amounts therein and prohibiting their availability to particular 
recipients, an amendment lessening the amount of the reduction and also 
providing an exception from the limitation may be in order as a 
perfection of the retrenchment if funds contained in the bill remain 
reduced thereby. The proceedings are discussed in Sec. 4.8, supra.
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10. 125 Cong. Rec. 18456, 18457, 96th Cong. 1st Sess.
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Sec. 66.9 To an amendment to a general appropriation bill prohibiting 
    the use of funds therein to enforce any embargo on the export of 
    agricultural commodities, an amendment excepting from that 
    prohibition any subsequently imposed Presidential embargo based 
    solely upon a determination that the export would be detrimental to 
    U.S. foreign policy or national security was held in order as a 
    valid exception from a limitation which did not impose new duties 
    but which merely repeated responsibilities already required by law.

    On July 23, 1980,(11) during consideration in the 
Committee of the Whole of H.R. 7584 (Departments of State, Justice, 
Commerce, and the Judiciary appropriation bill), the following 
amendment was held in order:
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11. 126 Cong. Rec. 19295, 96th Cong. 2d Sess.
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        The Clerk read as follows:

            Amendment offered by Mr. [E. Thomas] Coleman [of Missouri] 
        to the amendment offered by Mr. [Mark] Andrews of North Dakota: 
        (12)

[[Page 6326]]

        After the word ``commodity'' in the last line insert: ``unless 
        on or subsequent to October 1, 1980, the President imposes a 
        restriction on the export of any such commodity solely on the 
        basis that such export would prove detrimental to the foreign 
        policy or national security of the United States''. . . .
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12. The Andrews amendment provided: ``None of the funds appropriated by 
        this Act may be used to carry out or enforce any restriction on 
        the export of any agricultural commodity.'' See 126 Cong. Rec. 
        19087, 96th Cong. 2d Sess., July 22, 1980.
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        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I make 
    a point of order against the amendment in that it exceeds the 
    limitation and imposes additional duties upon the President of the 
    United States. . . .
        Mr. Coleman: . . . Mr. Chairman, the point of order is not well 
    taken because my amendment does not establish any new additional 
    duties. It simply says that if the President of the United States 
    subsequent to October 1, 1980, imposes an embargo then none of 
    these funds shall be used to fund that embargo. It imposes 
    absolutely no new duties. It simply states that if the President on 
    his own takes some action, that none of these funds shall be used 
    to support that action. . . .
        The Chairman: (13) The Chair is prepared to rule.
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13. George E. Brown, Jr. (Calif.).
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        The gentleman from Massachusetts (Mr. Conte) makes a point of 
    order against the amendment of the gentleman from Missouri (Mr. 
    Coleman) on the grounds that it imposes an additional duty, and 
    constitutes legislation on an appropriation bill. Ordinarily, such 
    Presidential determination language on an appropriation bill would 
    constitute legislation, but the amendment only repeats verbatim the 
    determination authority contained in the section of existing law 
    (section 4(c) of the Export Administration Act of 1979) which has 
    been called to the Chair's attention.
        Therefore, the amendment does not constitute new legislation in 
    any way discernible to the Chair.

    Parliamentarian's Note: Ensuing debate on the Coleman amendment by 
Mr. Thomas S. Foley, of Washington, and Mr. Jonathan B. Bingham, of New 
York, suggested that section 7 of the Export Administration Act, 
relating to domestic short supply of agricultural products, imposed a 
different standard from section 4(c) relied upon by the Chair and that 
the use of the term ``solely'' therefore infringed upon the Secretary's 
discretionary authority under section 7. A reading of subsection 7(g) 
suggests that the same standard is applied in permitting the President 
and Secretary of Agriculture to issue export licenses of agricultural 
commodities not in short supply, but that under subsection 7(a), with 
regard to agricultural commodities which are in short domestic supply, 
the President may curtail export of such commodities regardless of 
whether such policy is in the best security or foreign policy interest 
of the United States.

Effect of Limitation Where Funds for Agency Are Eliminated From Bill

Sec. 66.10 A paragraph of a general appropriation bill deny

[[Page 6327]]

    ing use of funds therein for antitrust actions against units of 
    local government, but providing that the limitation did not apply 
    to private antitrust actions, where the appropriation for the FTC 
    (which had brought such actions) had been stricken on a point of 
    order, was held in order as a proper limitation not directly 
    changing existing law, since the provision was confined to the 
    funds in the bill and affected federal court jurisdiction only 
    insofar as it was a simple denial of the use of funds in the bill.

    On May 31, 1984,(14) during consideration in the 
Committee of the Whole of the Departments of State, Justice, and 
Commerce appropriation bill (H.R. 5172), a point of order was overruled 
as indicated below:
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14. 130 Cong. Rec.----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 610. None of the funds appropriated or otherwise made 
        available by this Act may be obligated or expended to issue, 
        implement, administer, conduct or enforce any antitrust action 
        against a municipality or other unit of local government, 
        except that this limitation shall not apply to private 
        antitrust actions. . . .

        Mr. [John Edward] Porter [of Illinois]: Mr. Chairman, I raise a 
    point of order against section 610, which would be lines 23 to 25 
    on page 56, and lines 1 to 3 on page 57 as being legislation on an 
    appropriations bill under clause 2 of rule XXI.
        I would note to the Chair two points. First, the wording of 
    section 610 would apply to all funds under the act. That would 
    include funds for the Federal judiciary and the operations of 
    Federal courts. If, in fact, the language of section 610 were to 
    apply to the Federal courts, it would limit Federal jurisdiction in 
    cases involving antitrust suits against municipalities. If, in 
    fact, it would limit Federal jurisdiction in that way, it seems to 
    me, Mr. Chairman, that what it is is direct legislation both in 
    terms of the basic law and in terms of the laws under which the 
    courts operate.
        Second, I would point out to the Chair that if, in fact, it 
    does not apply to the Federal judiciary, under a ruling in 1959 of 
    the Chair, indicated in Deschler's Procedure, chapter 26, section 
    A, paragraph 1, subparagraph 1.5, there the Chair held that where 
    there was a provision that was previously stricken on a point of 
    order that limiting language to that provision was itself 
    legislating.
        And previously this afternoon the Chair has stricken on a point 
    of order all authorizing language respecting the FTC, which agency 
    would have jurisdiction over the subject matter.
        So, Mr. Chairman, in either case it seems to me that this 
    section 610 is in fact legislation on an appropriations bill. . . .
        Mr. [Martin O.] Sabo [of Minnesota]: . . . Section 610 of this 
    bill is simply a limitation on the expenditure

[[Page 6328]]

    of Federal funds. It does not provide for any new power. It is 
    simply a limitation on the expenditure of funds, which clearly is 
    well within the rules of the House. . . .
        Mr. [Hamilton] Fish [Jr., of New York]: Mr. Chairman, as we 
    look at section 610, the last clause reads: ``except that this 
    limitation shall not apply to private antitrust actions.'' So the 
    word, ``limitation,'' refers to the entire limitation in section 
    610 and does not affect the right to bring an action or the right 
    to enforce a judgment.
        It is my judgment, therefore, that the language of the bill 
    allows private parties to bring actions under antitrust laws. It 
    also allows the enforcement of outstanding judgments in favor of 
    private parties, and as there is no limitation on the judicial 
    powers, we do not reach the question of courts being affected by 
    this limitation, as was stated in one of the arguments propounded 
    on this point of order.

        The Chairman: (15) The Chair is prepared to rule.
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15. George E. Brown, Jr. (Calif.).
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        The gentleman from Illinois (Mr. Porter) makes a point of order 
    against section 610 on the ground that it constitutes legislation 
    on an appropriation bill and would limit the power of the courts.
        It is the Chair's opinion that the fact that the powers of the 
    courts might be limited by the restrictions on the funds or that 
    the FTC appropriation has been stricken on a point of order, does 
    not in itself constitute legislation, and that the section is 
    indeed only a limitation on expenditure of funds on the bill and as 
    such is proper in this section.
        Mr. Porter: Mr. Chairman, does the Chair's ruling indicate, 
    therefore, that the language in section 610 does not affect Federal 
    court jurisdiction over the type of suits described in that 
    section, not including private suits?
        Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, as I recall, 
    the point of order was in two parts. The Chair has ruled on the 
    first part. I await with some interest the ruling of the Chair on 
    the second part.
        The Chairman: The Chair had felt that he ruled on both parts. 
    The Chair feels that it is not . . . for the Chair to rule on the 
    effect of the negative limitation on the jurisdiction of the 
    courts. That is a matter for the House and the courts to determine. 
    From a parliamentary standpoint, the limitation is a valid 
    limitation and falls within the rules of the House.

    Parliamentarian's Note: Even if FTC funds, no longer in the bill, 
were the only possible moneys affected, the provision would have been 
an appropriate denial of use of funds in the bill. But the federal 
courts were also funded by the bill. The authority of the courts to 
preside over such actions despite the limitation was a legal issue not 
for the Chair to decide.